Players and Public Lose While NFL Reigns Victorious

In light of last night's documentary League of Denial: The NFL's Concussion Crisis, we felt it was important to revisit the statements NFL Commissioner Roger Goodell made the other week to Fox Sports broadcaster John Lynch concerning the proposed settlement of the players' class action lawsuit. Those statements and the NFL's longstanding unequivocal rejection of any relationship between concussions and brain trauma are an outrage and disrespectful to all those players whose lives have been devastated.

Goddell's disingenuous portrayal of the league's concern about the health and safety of the players is incredible at best. His assertion that the league has been forthcoming with medical information as it has become available, defies credulity. Goodell's unbelievable contention that the league has acted in good faith and has not misled the players, flies in the face of reality.

Over the years, the NFL has staunchly refused to acknowledge the accumulating body of impartial, documented, medical evidence underscoring the risk of permanent brain damage from repeated blows to the head. For over 40 years, many prestigious and well-recognized medical groups have steadfastly maintained that concussions are brain injuries.

The NFL, however, sought to hide behind the veil of inaccurate statements made by its own Mild Traumatic Brain Injury Safety Committee, which was formed in 1994. Chaired by an unqualified leader, it promulgated reports deliberately designed to mislead the players and the public. Twenty-five years later, during Congressional hearings, the Committee and league representatives continued to deny the connection between football and brain trauma. The conspiracy between the league and its physicians is tantamount to a pattern of civil racketeering, intended to deprive injured players disability benefits, medical care, and rehabilitation treatment. Thus, Goodell's pronouncement that if the litigation were to proceed it would reveal nothing contradictory to the NFL's position is directly inconsistent with its prior and long-standing position that there is no connection between football and brain damage.

In deflecting a question about whether this was a victory for the league, Commissioner Goodell claimed the settlement was good for the players. He was insistent that "no presumption of guilt" can be implied, despite the mounting numbers of brain-damaged players. The cloak of secrecy surrounding this settlement insures that no one will ever know what the league knew or for how long. This was indeed a major victory for the league, but a travesty for the players.

Unfortunately, this is a missed opportunity to provide meaningful protection and redress for past, present, and future players. The devil is in the details, which remain secret. If it is such a benefit to the players wouldn't it also be valuable to reveal those terms?

The gross settlement proceeds will not provide meaningful financial compensation to the vast majority of players who have suffered and will continue to suffer the lifelong consequences of brain trauma. The settlement excludes players who died from their brain injuries before 2006 and only provides compensation to players diagnosed with "severe cognitive impairment." A "mild" brain injury is only mild if it is someone else's brain, and those players are also excluded from this settlement. The settlement does not provide lifelong reimbursement of medical or rehabilitation care. Are the settlement proceeds intended to compensate players for their cognitive, emotional and behavioral deficits that will plague them for the remainder of their lives, or for necessary medical treatment? The brains of these players will not spontaneously and miraculously recover.

Further, to be effective, the recently enacted safety rules must be enforced by significant penalties not only on players who violate the rules, but more significantly on teams and coaches who implicitly condone barbaric behavior. If real reform is sought, guaranteed contracts that provide financial compensation for injured players would help to eliminate the stigma and economic disincentive of admitting concussion symptoms. Likewise, the paltry $10 million dollars allocated to brain injury research is not calculated to produce meaningful results.

We are in complete agreement, however, with Commissioner Goodell's declaration that, "I don't think we can ever do enough for our players." Certainly the league hasn't so far. The proposed settlement fails to provide meaningful justice for these players who have sacrificed their brains for the profits of the league.

Michael V. Kaplen, Esq., and Shana De Caro, Esq. are partners in the New York law firm, De Caro & Kaplen, LLP which concentrates their legal practice on representing victims of brain trauma. Michael Kaplen is a Professorial Lecturer in Law at The George Washington University Law School where is teaches the only course on the Legal Aspects of Traumatic Brain Injury in the nation. Shana De Caro is chair-elect of the American Association for Justice, Traumatic Brain Injury Litigation Group and a board member of the New York State Academy of Trial Lawyers and the Civil Justice Foundation.

This story appears in Issue 71 of our weekly iPad magazine, Huffington, available Friday, Oct. 18 in the iTunes App store.